James v. Terex Corporation

Filing 131

The Court GRANTS IN PART, DENIES IN PART and DEFERS ITS RULING IN PART Terex's Motion in Limine to Exclude Previously Unidentified Witnesses, 82 , GRANTS IN PART and DENIES WITHOUT PREJUDICE IN PART Terex's Motion in Limine to Exclude Lay Opinions, 83 , and DENIES WITHOUT PREJUDICE Terex's Motion in Limine to Exclude Testimony on the Operation and Repair of the Chippers, 84 . As to ROW's Motion in Limine, the Court DEFERS ITS RULING as to Part 1, and DENIES Part 2 of that Motion, 97 . Signed by District Judge R. Stan Baker on 11/21/19. (jrb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

ROW EQUIPMENT, INC.,
Plaintiff,

CIVIL ACTION NO.: 5:16-cv-60

v.
TEREX USA, LLC d/b/a TEREX
ENVIRONMENTAL EQUIPMENT,
Defendants.

ORDER
Plaintiff ROW Equipment, Inc. (“ROW”) sued Terex USA, LLC (“Terex”), seeking
damages for its purchase (from Terex) of wood chippers that ROW contends were faulty,
frequently malfunctioned, and were never properly repaired or replaced by Terex. The Court
granted summary judgment in favor of Terex on all but one of Plaintiff’s claims. (Doc. 57.) The
sole claim remaining for adjudication at trial is a claim that Defendant Terex breached its express
standard warranty that the chippers would be free of “defects in manufacture or materials” and that
it would adequately repair or replace the chippers. (Doc. 51, pp. 11, 13; doc. 57, p.p. 16–17; see
also doc. 15.) The case is presently before the Court on Defendant’s “Motion in Limine to Exclude
Previously Unidentified Witnesses,” (doc. 82), “Motion in Limine to Exclude Lay Opinions,” (doc.
83), and “Motion in Limine to Exclude Testimony on the Operation and Repair of the [Wood]
Chippers,” (doc. 84), as well as Plaintiff’s “Motion in Limine,” (doc. 97). For the reasons set forth
more fully below, the Court GRANTS IN PART, DENIES IN PART and DEFERS ITS
RULING IN PART as to Terex’s Motion in Limine to Exclude Previously Unidentified

Witnesses, (doc. 82); GRANTS IN PART and DENIES WITHOUT PREJUDICE IN PART
Terex’s Motion in Limine to Exclude Lay Opinions, (doc. 83); and DENIES WITHOUT
PREJUDICE Terex’s Motion in Limine to Exclude Testimony on the Operation and Repair of
the Chippers, (doc. 84). As to ROW’s Motion in Limine, the Court DEFERS ITS RULING as
to Part 1, and DENIES Part 2 of that Motion, (doc. 97).
STANDARD OF REVIEW
“The real purpose of a Motion in Limine is to give the trial judge notice of the movant’s
position so as to avoid the introduction of damaging evidence, which may irretrievably affect the
fairness of the trial.” Stewart v. Hooters of Am., Inc., No. 8:04-CV-40-T17-MAP, 2007 WL
1752873, at *1 (M.D. Fla. June 18, 2007). “The court excludes evidence on a Motion in Limine
only if the evidence is clearly inadmissible for any purpose.” Id. “Accordingly, if evidence is not
clearly inadmissible, evidentiary rulings must be deferred until trial to allow questions of
foundation, relevancy, and prejudice to be resolved in context.” Id. (citation and emphasis
omitted).
DISCUSSION
I.

Terex’s Motion in Limine to Exclude Previously Unidentified Witnesses (Doc. 82)
In the at-issue Motion in Limine, Terex seeks an order prohibiting ROW from calling as

witnesses at trial the following individuals, whom ROW listed in its Witness List for trial (which
was filed in accordance with this Court’s Trial Preparation Scheduling Order (doc. 77)), but who,
according to Terex, were never disclosed as potential witnesses during discovery: Christy Houck,
Sam Cason, “Danny (mechanic, last name unknown),” Matt Twig, and Chuck Snyder. (Doc. 82,
p. 7.) Terex also seeks the exclusion of Terry Tyre, who was included on the Witness List and had
been identified during another witness’s deposition, but for whom ROW never provided Terex

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contact information. (Id.) Notably, ROW has not responded to this particular Motion in Limine
and thus apparently admits that these witnesses were either never disclosed or, in the case of Tyre,
were insufficiently identified.
A party must disclose “the name and, if known, the address and telephone number” of any
individual likely to have discoverable information that the party may use to support any of its
claims or defenses within fourteen days of the Rule 26(f) conference. 1 Fed. R. Civ. P. 26(a)(1).
“If a party fails to . . . identify a witness as required by Rule 26(a) or (e), the party is not allowed
to use that information or witness to supply evidence . . . at a trial, unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The non-disclosing party bears
the burden of showing that its failure to disclose was substantially justified or harmless. Mitchell
v. Ford Motor Co., 318 F. App’x 821, 824 (11th Cir. 2009) (internal quotation marks and citation
omitted).
The Court has reviewed ROW’s initial disclosures as well as its responses to Terex’s
written discovery requests (copies of which were provided as exhibits to Terex’s Motion in
Limine). None of these documents identified Christy Houck, Sam Cason, Matt Twig, Chuck
Snyder, or Terry Tyre as potential witnesses (much less provided telephone numbers or addresses
for them). The Court has also reviewed portions of two deposition transcripts provided by Terex,
which show that Terry Tyre was twice identified as an operator of one or both of the chippers.
(Docs. 82-9, 82-10.) While there is no indication that Terex affirmatively requested telephone
number or address information for Tyre during those depositions or thereafter, there is also no
indication that this information was not known to ROW and thus not subject to mandatory

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However, a party need not disclose those individuals whose testimony will be used only for impeachment.
Fed. R. Civ. P. 26(a)(1)(A)(i).
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disclosure to Terex per Fed. R. Civ. P. 26(a)(1). 2 Finally, as to the witness identified as “Danny
(mechanic, last name unknown),” ROW did disclose—in its Responses to Terex’s First
Interrogatories—“Danny Parker” as a “Mechanic” with “knowledge about the defective Chippers”
and it provided a phone number for him. (Doc. 82-3, pp. 6, 16.)
Despite bearing the burden to do so, ROW has made no effort to show either that it made
proper and timely disclosures of any or all of the at-issue witnesses or that its failure to do was
substantially justified or harmless. The Court finds that ROW failed to properly disclose Christy
Houck, Sam Cason, Matt Twig, and Chuck Snyder as potential witnesses. and it therefore cannot
affirmatively call any of them as a fact witness. As to Terry Tyre, given ROW’s failure to respond
to the Motion in Limine, no justification or other argument has been offered for ROW’s failure to
formally identify Tyre as someone ROW may use to supports its claims. Moreover, even if the
Court found that the deposition testimony about Tyre constituted sufficient identification, there is
no indication that Tyre’s telephone number and/or address were unknown to ROW such that ROW
was excused from providing such information. As a result, Terex cannot call Tyre as a fact witness.
The Court emphasizes, however, that the failure to properly disclose each of the foregoing
individuals as a witness does not prevent ROW from eliciting testimony from them to rebut
testimony offered by a witness for Terex.
Finally, if the witness identified as “Danny (mechanic, last name unknown)” in ROW’s
Witness List is Danny Parker (the individual identified in ROW’s interrogatory responses), then
ROW may call him as a witness at trial. To the extent, however, “Danny (mechanic, last name
unknown)” is someone other than the Danny Parker previously identified in ROW’s interrogatory
responses, then that individual cannot be called by ROW as a fact witness (though he may be called

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There is likewise no indication that ROW supplemented its initial disclosures or written discovery
responses to formally identify Tyre as someone that it may use to support any of its claims or defenses.
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to rebut testimony offered by a witness for Terex). Certainly, by the time of the Pretrial
Conference, ROW should have determined the last name of this individual whom it expects to call
as a witness at trial. Therefore, at the Pretrial Conference for this case, the Court will issue its
ruling on whether “Danny” will be permitted to be called as a witness by ROW. Accordingly,
Plaintiff's Motion in Limine to Exclude Previously Unidentified Witnesses, (doc. 82), is
GRANTED IN PART, DENIED IN PART, and DEFERRED IN PART (as to witness
“Danny”).
II.

Terex’s Motion in Limine to Exclude Lay Opinions (Doc. 83)
In its Motion in Limine to Exclude Lay Opinions, Terex seeks to exclude “testimony

regarding the engineering, design, manufacture, and repair of the [two at-issue wood chippers]
from lay witnesses who are not qualified to testify on such issues.” (Doc. 83, p. 6.) Terex notes
that ROW has not identified any expert witnesses to opine on these topics, (id.), and it therefore
anticipates that ROW will seek to elicit this sort of “evidence, testimony or opinions” from lay
witnesses, which it argues should be excluded as “contrary to the law, not relevant, and on the
grounds it will only confuse the jury.” (Id. at p. 2.)
In its Response, ROW concedes that none of its witnesses should be permitted to testify as
to what “should have been incorporated into the design of the chippers” or as to the alleged reasons
“why repairs were necessary.” (Doc. 104, p. 1 (quoting doc. 83, pp. 8, 10).) ROW takes issue,
however, with limiting its witnesses’ abilities to testify about repairs to the chippers, particularly
where the witnesses have “personal knowledge of the simple fact that, at least on certain occasions,
the chippers did not work.” (Id. at p. 1.) ROW also points out that Terex has designated, for use
at trial, portions of ROW’s own witnesses’ deposition transcripts wherein ROW witnesses were
asked to talk about issues with the chippers that could or did require repairs. (Id. at pp. 2–3.)

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In Reply, Terex points the finger back at ROW, claiming that ROW has designated (for
use at trial) testimony “that contain[s] unfounded conclusion[s] based on hearsay regarding the
alleged appropriateness and/or effectiveness of repairs made and/or the alleged reasons why
repairs were necessary.” (Doc. 107, p. 3.)
Opinion testimony by lay witnesses is governed by Fed. R. Evid. 701, which requires that
any such testimony be: (a) rationally based on the witness’s perception; (b) helpful to clearly
understanding the witness’s testimony or to determining a fact in issue; and (c) not based on
scientific, technical, or other specialized knowledge within the scope of Fed. R. Evid. 702, which
governs testimony by individuals deemed expert witnesses. The Court will apply this standard
when it reviews the objections each party has filed to the other party’s deposition designations. As
to testimony which Terex anticipates ROW will seek to elicit from witnesses at trial, given ROW’s
concessions in its Response and the fact that it has not shown that any of its potential witnesses
are qualified to so opine, the Court GRANTS the Motion in Limine to the extent it seeks to prohibit
ROW from eliciting any opinions from its witnesses regarding shortcomings with the original
design, engineering or manufacture of the chippers. The Court DENIES without prejudice,
however, the Motion in Limine as it concerns trial testimony about repairs. Without the context
of trial, the Court simply cannot rule on issues regarding the foundation for admitting lay opinion
testimony concerning repairs. This is particularly true because one of the major issues for the jury
to assess is whether and to what extent Terex was expected to repair or replace the chippers. There
is evidence that ROW employees were, at times, involved in determining whether repairs were
necessary and undertaking some repairs. The Court emphasizes that this ruling does not preclude
Terex from raising Rule 701 objections at trial.

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III.

Terex’s Motion to Exclude Testimony on Operation and Repair of Chippers (Doc. 84)
In its Motion in Limine to Exclude Testimony on the Operation and Repair of the Chippers,

Terex moves the Court to prohibit John James from testifying at trial about repairs made to the
chippers, on the grounds that he allegedly has no first-hand knowledge on that topic, and to prohibit
James and two other witnesses from testifying about “operation” of the chippers as none of them
ever operated the chippers and they thus lack any firsthand knowledge on that topic. (Doc. 84.)
Terex argues that any such testimony would necessarily be based on hearsay.
In its Response, ROW provides various examples of potential testimony from James and
the two other individuals that could fall within the “repair of chippers” or “operation of chippers”
categories but that would not necessarily be premised upon hearsay or speculation. Without the
context of trial, the Court simply cannot determine whether certain testimony actually constitutes
hearsay (to which no exception applies), whether the foundation for admitting the particular
testimony has or has not been laid, and other similar considerations governing admissibility.
Moreover, Terex’s Motion sweeps so broadly that granting the Motion would likely result in the
exclusion of admissible testimony. Thus, the Court declines to enter a blanket order barring any
witnesses from testifying about repairs made to the chippers or the operation of the chippers, and
the Court therefore DENIES the Motion in Limine on this topic, (doc. 84), without prejudice to
Terex raising any such objections to specific testimony at trial.
IV.

ROW’S Motion in Limine (Doc. 97)
A.

The Limited Remedy in the Standard Warranty

In the Part 1 of its Motion in Limine, ROW seeks an order prohibiting Terex from arguing
to the jury that “it may only be held liable, if at all, for the cost of repair or replacement under the
warranty.” (Id. at p. 2.) The Court has recently ordered additional briefing from the parties that

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could impact its ruling on this part of ROW’s Motion in Limine. As a result, the Court DEFERS
its ruling on Part 1 of ROW’s Motion in Limine.
B.

Testimony from John Pauley and Mike Boeneman on the Chippers’ Design

In Part 2 of its Motion in Limine, ROW “seeks to prevent [Terex witnesses John] Pauley
and [Mike] Boeneman from providing any testimony about the design of the chippers” on the
ground that “[t]he design of the chippers is a matter of expertise” yet “these witnesses were never
disclosed as experts until” just recently (after the close of discovery). (Doc. 97.) ROW further
notes that Terex has refused to permit ROW to depose these individuals since their recent
disclosure of them.
In its Response, Terex states that neither Pauley nor Boeneman have ever been identified
as expert witnesses in this case, and that both individuals were disclosed early on in this litigation
as persons with knowledge regarding the issues of the case and that ROW simply chose not to
depose them. (Doc. 100, pp. 3–4.) According to Terex, Pauley has personal knowledge of the
design of the at-issue chippers, while Boeneman has personal knowledge of the manufacture of
the at-issue chippers, as well as “certain repairs, and certain of the designs for the chippers.” (Id.
at p. 3.) Terex states that both individuals are “anticipated to testify regarding” these topics, and
it urges that there is “no reason to prevent either witness from testifying as to their personal
knowledge of the design of the [at-issue c]hippers” and “no basis to exclude possible lay opinions
from either [witness] regarding design of the chippers.” (Id. at pp. 3, 5.) Terex does not, however,
set forth any of the opinions either witness is expected to provide regarding the design,
manufacture or repairs of the chippers.
As Terex points out in its Response, lay witness testimony is governed by Fed. R. Evid.
701, which provides that opinion testimony from a non-expert is only admissible if it is: “(a)

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rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.” Fed. R. Civ. P. 701. While the Rule permits
lay witnesses to “offer an opinion on the basis of relevant historical or narrative facts that the
witness has perceived,” MCI Telecomms. Corp. v. Wanzer, 897 F.2d 703, 706 (4th Cir. 1990)
(quoting Teen–Ed, Inc. v. Kimball Int’l, Inc., 620 F.2d 399, 403 (3d Cir. 1980)), it generally does
“not permit a lay witness to express an opinion as to matters which are beyond the realm of
common experience and which require the special skill and knowledge of an expert witness.”
Randolph v. Collectramatic, Inc., 590 F.2d 844, 846 (10th Cir. 1979). A critical distinction
between Rule 701 and Rule 702 testimony is that expert witness opinion testimony must be based
on “scientific, technical, or other specialized knowledge,” skill or education that is not in the
possession of the jurors, while lay opinion testimony may not be so based. Rule 701’s most recent
substantive amendment was undertaken in 2000. The Advisory Committee Notes regarding the
2000 amendments state the following:
Rule 701 has been amended to eliminate the risk that the reliability requirements
set forth in Rule 702 will be evaded through the simple expedient of proffering an
expert in lay witness clothing. Under the amendment, a witness’ testimony must
be scrutinized under the rules regulating expert opinion to the extent that the witness
is providing testimony based on scientific, technical, or other specialized
knowledge within the scope of Rule 702. By channeling testimony that is actually
expert testimony to Rule 702, the amendment also ensures that a party will not
evade the expert witness disclosure requirements set forth in Fed. R. Civ. P. 26 and
Fed. R. Crim. P. 16 by simply calling an expert witness in the guise of a layperson.
Fed. R. Evid. 701, Advisory Committee Notes, 2000 Amendments (citations omitted).
In sum, Pauley and Boeneman, as lay witnesses, are permitted under Rule 701 to offer
testimony regarding the design, manufacture or repair of the chippers but only so long as that
testimony is rationally based on their first-hand perceptions, helpful to clearly understanding their
testimony or to determining a fact in issue, and not based on scientific, technical, or other
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specialized knowledge within the scope of Rule 702. Accordingly, the Court DENIES ROW’s
broad request for an order preventing Pauley and Boeneman from “providing any testimony about
the design of the chippers.” (Doc. 97.) This ruling does not, however, preclude ROW from raising
objections to specific testimony based on Rule 701, as appropriate, if and when Pauley and
Boeneman testify at trial.
CONCLUSION
For all the foregoing reasons, the Court GRANTS IN PART, DENIES IN PART and
DEFERS ITS RULING IN PART Terex’s Motion in Limine to Exclude Previously Unidentified
Witnesses, (doc. 82); GRANTS IN PART and DENIES WITHOUT PREJUDICE IN PART
Terex’s Motion in Limine to Exclude Lay Opinions, (doc. 83); and DENIES WITHOUT
PREJUDICE Terex’s Motion in Limine to Exclude Testimony on the Operation and Repair of
the Chippers, (doc. 84). As to ROW’s Motion in Limine, the Court DEFERS ITS RULING as
to Part 1, and DENIES Part 2 of that Motion, (doc. 97).
SO ORDERED, this 21st day of November, 2019.

R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

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